Think Again: Labor and the ‘Civil Right’ to Organize

In an in-depth and deeply depressing study of the state of American unions written for the German Social Democratic foundation Friedrich-Ebert-Stiftung, author Harold Meyerson writes, “After decades during which their numerical strength has slowly but steadily declined, U.S. trade unions are now facing an unprecedented assault from a radicalized Republican right. Legislation is advancing to strip collective-bargaining rights or membership from unions.”

He adds, “In the America where WalMart was the largest employer, the nonunion retailer pays its employees so little that they are compelled to shop at WalMart. The evisceration of the American middle class—the decently paid part of its working class in particular—has finally become an agreed-to fact among America’s chattering classes.”

There are, of course, many reasons for the declining strength of labor unions, but one that is often overlooked is the rewriting of labor law over the past few decades. Writing in In These Times, journalist Josh Eidelson questions why political groups have every right to boycott advertisers and funders who support causes of which they disapprove but labor unions don’t have that same right to act against supporters of the employers who seek to break their strike.

The outlawing—in the 1947 Taft-Hartley amendments to the National Labor Relations Act—of the so-called secondary boycott by unions against suppliers and other affiliated companies tied to an initial strike target not only robbed the labor union of an effective weapon against recalcitrant employers but also of a powerful means of building lines of solidarity across industries that would strengthen them for the next round of bargaining. These laws actually prevent unions from exercising the same free speech rights that almost everyone else in America enjoys.

University of Texas School of Law professor Jack Getman, in his book Restoring the Power of Unions, says the Supreme Court specifically allows right-wing lunatics to hold signs reading “God Hates Fags” and "Thank God for Dead Soldiers" at the funerals of American soldiers but will not allow workers to hold signs that tell the truth about a certain company’s labor practices if the company can be defined as the target of a secondary boycott.

Given laws like these—to say nothing of the untold riches the right has spent stacking the courts with antilabor judges and demonizing anyone in public life who sticks up for unions—it is no wonder that organized labor finds itself on the ropes in almost every respect these days. From its fall from roughly one-in-three workers in private industry in the 1950s to less than 8 percent of private workers today, labor has not only found itself buffeted by global economic winds and relentless political attack but also been forced to fight back in legal handcuffs, arms tied behind its metaphorical back.

It is a good time, therefore, for scholars Richard D. Kahlenberg and Moshe Z. Marvit to ask whether Americans have, or ought to have, a “civil right to organize.” In a New York Times op-ed, they note, “From the 1940s to the 1970s, organized labor helped build a middle-class democracy in the United States. The postwar period was as successful as it was because of unions, which helped enact progressive social legislation from the Civil Rights Act to Medicare.”

The authors first summarize the typical conservative arguments for the decline of unions: their alleged outdatedness in the currently global economy—something that is belied by unions’ strength in other nations such as Germany whose economies frequently outperform our own—coupled with minimal protections against certain abuses that have been written into law. Then the authors identify “the greatest impediment to unions” as “weak and anachronistic labor laws”:

It’s time to add the right to organize a labor union, without employer discrimination, to Title VII of the Civil Rights Act, because that right is as fundamental as freedom from discrimination in employment and education. This would enshrine what the Rev. Dr. Martin Luther King Jr. observed in 1961 at an A.F.L.-C.I.O. convention: “The two most dynamic and cohesive liberal forces in the country are the labor movement and the Negro freedom movement. Together, we can be architects of democracy.”

The authors then make a constitutional argument in favor of their reading of this right. Building on Dr. King’s equation of the denial of equal rights on the basis of color to those on the basis of organizing, they propose using the Civil Rights Act of 1964 to make:

… disciplining or firing an employee “on the basis of seeking union membership” illegal just as it now is on the basis of race, color, sex, religion and national origin. It would expand the fundamental right of association encapsulated in the First Amendment and apply it to the private workplace just as the rights of equality articulated in the 14th Amendment have been so applied.

The use of King’s rhetoric, almost always associated with civil rather than labor rights, provides a partial response to two vexing questions raised not long ago by Robert Kuttner, cofounder of The American Prospect: “First, how did we make such stunning progress in three decades on issues involving tolerance and inclusiveness? And how is it that, during the same period, we have gone steadily backwards on a whole set of economic issues?”

Remember, economic inequality has skyrocketed to the point that the top 1 percent of Americans own more than the bottom 90 percent, and income from productivity gains has gone almost exclusively to the top 10 percent. This is true in both good times and bad. As noted recently in The New York Times, “Between June 2009, when the recession officially ended, and June 2011, inflation-adjusted median household income fell 6.7 percent, to $49,909.”

But as the Roosevelt Institute’s Mike Konczal pointed out, 2010—the first full year of the economic recovery—was very good for America’s richest 1 percent. In fact, the richest 1 percent captured 93 percent of the nation’s income gains that year. In real numbers, this means that “the bottom 90% of Americans lost $127, the bottom 99% of Americans gained $80, and the top 1% gained $105,637.”

In other words, the 1 percent has continued its march toward an ever-greater share of our national wealth, as I predicted in this column, despite mainstream media reports that appeared to argue the contrary.

In their forthcoming book, Why Labor Organizing Should Be a Right, Kahlenberg and Marvit make the argument that the strategy they propose would no doubt fail to succeed within a Republican-dominated Congress, “but progressives need to begin developing a new strategy now [for] when they do regain full political power” because even when the Democrats have controlled both the presidency and Congress, they have still failed in recent decades to strengthen the cause of labor.

The failure even to make a credible run at passing “card-check” legislation—which would have simplified the process through which a union with more than 50 percent membership of a given corporation could become certified by the National Labor Relations Board—under the Obama administration underscores that point. Card-check legislation has been labor’s most pressing demand for the past decade or so—and yet is only the most recent in a string of political failures.

What’s more, the arguments for labor rights are strong not only from a moral perspective but from a pragmatic one as well. Presently, for instance, it is perfectly legal for employers to discriminate against employees who try to organize a union, and there are countless ways to prevent an honest vote among workers should they desire one. Kahlenberg and Marvit quote the labor lawyer and prominent liberal author Thomas Geoghegan who explains, “An employer who didn’t break the law would have to be what economists call an ‘irrational firm.’”

Moreover, the extension of civil rights to cover labor rights would hardly be unprecedented. We already have civil rights protections based on such conditions as “pregnancy, prior criminal conviction, whistle blowing, indebtedness, or bankruptcy.”

In the past, arguments for labor have focused on complicated situations such as “closed shops” (in which an employer agrees to hire only union members) and “card checks,” which do not necessarily inspire immediate sympathy among those who are not usually paying attention—as is the case with most Americans. Focusing on whether workers have the same free speech rights as the rest of us seems a promising avenue for potential progress.

The authors deserve our gratitude for having found a fresh way to make a case for a crucial institution that finds itself on the ropes. That’s why it’s all the more important to get it right this time and reconsider whether “rights” are necessarily the right way to go. (I hope to return to this topic once the book has had a chance to inspire further debate on this point.)